Deregulation

Earlier this month, the U.S. Department of Transportation (DOT) issued a notice seeking input from the public on existing guidance documents within DOT and its modal operating administrations, including PHMSA. In particular, DOT seeks input on guidance documents that are no longer necessary, are cost-inducing, inconsistent or unclear, not conducive to consistent enforcement, or that need to be updated. The more specific the comments about the documents and the concerns with them, the better, along with suggested alternatives. The comment period remains open until April 8, 2019.

The notice relates back to a prior DOT notice requesting comments on regulatory review in October 2017, where DOT sought public comment on existing rules as well as guidance documents. Both this notice and the prior 2017 notice stem from the Trump Administration’s Executive Orders regarding deregulation (E.O. 13771) and regulatory reform regulatory reform (E.O. 13777). In addition, this most recent notice was issued on the heels of DOT’s posting of a new guidance directive from DOT’s General Counsel outlining a more detailed clearance process for guidance that became effective in December 2018.

Regardless of the basis, the regulated community has a unique opportunity to recommend that particular guidance documents be repealed or revised. A wide array of PHMSA documents constitute guidance potentially subject to the notice, such as Agency Inspection Protocols, Staff Manuals and Instructions, Reporting Form Instructions (such as 7000.1 or 7100.2 incident and annual reports), Advisory Bulletins, Frequently Asked Questions, and even interpretations and policy statements. Other documents such as the Pipeline Civil Penalty Summary are also within the scope of the Notice.

Certain of PHMSA guidance materials are inconsistent, out of date, and unclear, and could benefit from revision at a minimum. Further, PHMSA at times relies on guidance documents which do not have the force of law to inform agency enforcement or corrective actions. Coupled with DOT’s new focus on streamlining agency guidance, we encourage operators to consider submitting comments. To that end, we are particularly well positioned to assist clients in preparing comments to this Notice, given the breadth and depth of our national practice and experience.

The Pipeline and Hazardous Materials Safety Administration (PHMSA) has published an Advanced Notice of Proposed Rulemaking (ANPRM) requesting comments on existing requirements for gas transmission pipelines following population growth. This notice is the result of previous Agency requests for comment, Congressional mandates, Agency workshops, and industry comments dating back nearly a decade. The proposed rulemaking could provide industry with additional options when population increases trigger class location changes, and thereby avoid costly pipe replacement or pressure testing.

Last week, PHMSA’s oil and gas pipeline technical advisory committees convened to review and discuss significant pending rulemakings and regulatory reform initiatives, among other topics. At the same time, the White House touted its deregulation efforts, including the purported elimination of 22 regulations in the past year for each new rule passed.For an agency that is facing outstanding statutory mandates to enact certain regulations, with reauthorization looming in 2018, it is expected that PHMSA will promulgate some new rules in the New Year. It is not yet known, however, what the content of those rules will be and whether the expansive gas ‘mega rule’ will be among those finalized in 2018. Given the overall regulatory climate to reduce regulation and burden, a little certainty might be appreciated in the New Year. Continue Reading All I want for Christmas is … regulatory certainty?

A year ago, the oil and natural gas industry was preparing comments and responses to several expansive proposed rules issued by the Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA). With the advent of the Trump Administration and its focus on deregulation, those pending rules have since been withdrawn and are being reevaluated (among hundreds of other administrative agency rules). In the first 100 days of this Administration, the White House issued 58 executive orders and memoranda, nearly a quarter of which affected the pipeline industry directly or indirectly. In the six months since, the President has continued to issue directives aimed at eliminating regulatory burdens and expediting energy infrastructure. While these directives were met with initial relief from the industry, they lack clear deadlines and details and it has fallen on the various administrative agencies to interpret and implement them. To complicate matters, the Administration has simultaneously issued budget cuts across the board and has been slow to appoint key leadership positions. For an industry that relies on regulatory certainty, much remains uncertain.

The Department of Transportation formally requestedpublic comment on existing rules and “other agency actions,” including but not limited to guidance documents and policy statements, that are good candidates for repeal, replacement, suspension, or modification without compromising safety. This request covers all DOT modal agencies, including PHMSA, the FAA, the FRA, NHTSA, among others. In addition to requesting comments, DOT indicated that it may hold a public meeting on these issues. Comments are due November 1, 2017.

The U.S. Department of Transportation (DOT) recently published a notice inviting public comment to identify statutes, rules, regulations, and interpretations in policy statements or guidance that “unjustifiably delay or prevent completion of surface, maritime, and aviation transportation infrastructure projects.” As stated in the notice [attached], in keeping with President Trump’s regulatory reform agenda, DOT and other federal agencies are in the process of reviewing existing policy statements, guidance documents, and regulations that might pose impediments to transportation infrastructure projects. The upcoming deadline to provide input on that review is July 24, 2017. We encourage industry to consider submitting comments, particularly given DOT’s statement that comments are not restricted to burdensome regulations, but also extend to policy statements, interpretations and guidance.

As part of his regulatory reform agenda, President Donald Trump instructed federal agencies to review their regulations to identify requirements that burden businesses and industry. See EO 13771 and EO 13777. In order to comply with these directives, on June 8, 2017, the U.S. Department of Transportation (DOT) requested public comments to identify statutes, rules, regulations, and interpretations in policy statements or guidance “that unjustifiably delay or prevent completion of surface, maritime, and aviation transportation infrastructure projects.”

President Trump has issued 30 Executive Orders and 28 Executive Memoranda since taking office on January 20, 2017, despite his failure to pass any major laws. That is more Executive Orders than any President has issued in the first 100 days since World War II. Nearly one fourth of these executive actions have affected the pipeline industry, either directly or indirectly, as noted below:

On Friday, February 24, 2017, President Trump signed another Executive Order (EO) aimed at identifying and eliminating federal regulations that burden businesses. The EO states that “[i]t is the policy of the United States to alleviate unnecessary regulatory burdens placed on the American people.” Continue Reading Executive Order Focuses on Deregulation

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